Lapas attēli

below. The action was brought to recover damages for personal injuries sustained in defendant's mill, while plaintiff was employed in the handling, with an iron hook, of some hot iron which had been taken from a furnace and run through the roughing rolls. At the close of plaintiff's testimony, defendant put in no testimony, but moved for a direction of verdict in its favor. The motion was granted.

J. T. Smith, David E. Fitzgerald, and Walter J. Walsh, for plaintiff in error.

P. W. Chase and R. J. Woodruff, for defendant in error.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. The operation which was being conducted was the heating and rolling of a box pile. A box pile apparently consists of a collection of pieces of scrap iron inclosed by four slabs so as to form a sort of boxlike structure held together by wires. This is heated in a furnace, and when nearly molten is brought out and run, one or more times, through rollers, which operate to transform it into a sheet or bar. The plaintiff testified that on the occasion in question, after the iron had been through the rolls for the first time, and while he was about to lift it to put it back again, the iron exploded” and "lie got burned all over and lost his eye. The plaintiff, a young man of 19, had been employed in similar mills for a considerable time, but in rolling box piles for five weeks only. For five months prior to that he had worked at rolling puddle balls, which consist of iron in a different condition from that of box piles.

The complaint contained two different specifications of negligence. It averred that it "was a reasonable precaution for the safety of the men employed in handling the molten mass to have a very careful and rigid inspection made of the scrap iron while it was being formed into the piles, and before it was put into the furnace, in order to detect the presence of any substance which, when coming in contact with the rollers after coming from the furnace, would be likely to cause the molten iron to explode.” The answer, referring to this part of the complaint, admitted “that it might be considered a reasonable precaution, for the safety of the men employed in the same occupation as was the plaintiff, to have an inspection made of the scrap iron," etc. The complaint further averred that on the date of the accident defendant failed to make a reasonably careful inspection of the scrap iron, and failed to discover the existence in the molten mass of dirt. slag, cinder, or other foreign substances, and failed to make any inspection whatever of the pile of scrap iron. These averments were denied in the answer, which averred specifically that defendant “did take such reasonable precaution to inspect the scrap iron at all times, and did at the time the plaintiff claims to have received his injuries. The evidence did not show any failure to provide for an inspection of the scrap iron, and the court's attention at the time motion for verdict was made seems to have been entirely directed to the charge of “negligence, in that there was no inspection.” If this were all of the case, we should be inclined to affirm the judgment; but there is another branch of it which seems to have been overlooked. It is conceded by the answer that, in the rolling of box piles, it will sometimes occur

that the molten mass wi
avers that plaintiff well
complaint avers that he
"never informed, warned
latter averment is denied

Upon a careful examin:
conclusion that there was
to warrant the jury in fire
behaviour of the iron wher
serious than the ordinary
a few hours experience
imperfection which only
man who had worked els
brief experience at the bc
cautions to avoid the co
pected. Plaintiff testified
think it best not to discu
cause upon a new trial the
The two witnesses to the
taken under such a multit
portant, that it must hav.
any one to tell what had,
defendant put in its owr
experienced, and intellige
ences, and results in the tr
varieties of molten iron, a
It is sufficient to say that
testimony, there was evide
persuasive, but sufficient t
the conditions existing at

The judgment is reverse

(Circuit Court of Appeals, F


Two steamships meetin lision, the descending ve to the statutory rule, ansignal, intended for anot taken by the latter and a ascending vessel for so stead of sounding a dang understood.

(Ed. Note.--Signals of C. A. 630.)

t the molten mass will explode and scatter about. The answer ers that plaintiff well knew that such result might happen. The mplaint avers that he was inexperienced in the business, and was iever informed, warned, or instructed concerning the same,” which tter averment is denied in the answer.

Upon a careful examination of the testimony, we have reached the onclusion that there was sufficient, in the absence of further proof, o warrant the jury in finding that there was a liability to some misbehaviour of the iron when box piles were being rolled, which was more serious than the ordinary spark throwing which would be observed in a few hours experience at the work. That there was some hidden imperfection which only manifested itself occasionally, and which, a man who had worked elsewhere in the mill might not discover in a brief experience at the box-pile rolls, and of which he might take precautions to avoid the consequences, if warned that it might be expected. Plaintiff testified he had not been warned or instructed. We think it best not to discuss the testimony at any greater length, because upon a new trial the case may present an entirely different aspect. The two witnesses to the accident were unintelligent, and proof was taken under such a multitude of objections, many of them quite unimportant, that it must have been difficult at the close of the case for any one to tell what had, and what had not, been proved. Had the defendant put in its own testimony, and explained by older, more experienced, and intelligent workmen the various processes, experiences, and results in the treatment of box piles, puddle balls, and other varieties of molten iron, a different situation might have been shown. It is sufficient to say that, when defendant elected not to put in any testimony, there was evidence, unsatisfactory indeed, and not especially persuasive, but sufficient to call upon defendant for an explanation of the conditions existing at the time of the accident.

The judgment is reversed.



(Circult Court of Appeals, Fifth Circuit. April 15, 1907. Rehearing Denled

May 20, 1907.)

No. 1,599.


Two steamships meeting in the Mississippi both held in fault for a col. lision, the descending vessel for giving the first passing signal contrary to the statutory rule, and after it had been accepted in giving a contrary signal, intended for another vessel astern of the first, but which was mistaken by the latter and acted on, directly contributing to the collision, the ascending vessel for so mistaking the second signal and acting on it, instead of sounding a danger signal and stopping until the signals were fully understood.

[Ed. Note.-Signals of meeting vessels, see note to The New York, 80 C. C. A. 630.]

Appeal and Cross-Appeal from District Court of the United States for the Eastern District of Louisiana.

J. D. Rouse and Wm. Grant, for appellant.
Edgar H. Farrar, for appellees.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges

were the m contributed able care a is much co was really ping and re view the ca ther pass o

We concu and the deci cross-appeal. appellani and


PER CURIAM. The collision in this case resulted from a con fusion and misunderstanding of signals. The first signal was given by the descending steamer Ellis, and was in violation of the letter of statutory rule 1 governing pilots on western rivers, which provides, among other things, that the pilot of the ascending steamer shall be the first to indicate the side on which he desires to pass, and that the descending steamer is entitled to the right of way. This violation, however, did not directly contribute to the collision, because it was fully understood and accepted by the ascending steamer Galicia. The second signal of two blasts given by the Ellis and intended for the ascending transfer steamer, then somewhere astern of the Galicia, was also in violation of the said rule, and led directly to the collision, for the Galicia misunderstood it, and changed her course so as to run directly across the course intended and maintained by the Ellis, rendering a collision extremely probable, if not inevitable. At the time this signal was given by the Ellis, the transfer steamer for which it was intended, if outside of its slip at all and in the river, was over 1,200 yards distant from the Ellis, and therefore such signal was premature, even if under a fair construction of rule 1 the descending steamer may signal when the ascending steamer has failed to signal, and the vessels have come near to or within the 800-yard limit. If the rule had been followed and the transfer steamer astern of the Galicia had signaled for passing by one or two blasts of its steam whistle, the Galicia, although having no special lookout astern, would have been charged with knowledge that the two blasts signals from the Ellis were in answer to and intended for another steamer, and no confusion would have resulted, except at the sole fault of the Galicia. The actual violation at the time of the collision of a statutory rule intended to prevent collisions is presumably a fault, and, if not the sole cause of the collision, at least a contributory cause. The Pennsylvania, 19 Wall. (U. S.) 136, 22 L. Ed. 148. When, after the passing signals had been given and accepted between the Ellis and the Galicia, the Ellis followed after more or less interval with a two blast signal, the Galicia should have taken it as intended for some steamer astern, but, if understanding it as intended to change the course of passing already arranged betwen the two steamers, the Galicia should have sounded the danger signal, stopped her engines, and backed if the vessels were in close proximity until the passing signals were fully understood. The Galicia did neither. She accepted the signals as intended for herself, and so changed her course as to make the collision next to certain. In this we are clear that she was in fault.

The judge of the District Court found that the faults of the Ellis


Where al tion, the bu same to sho the bankrup

Act July 1, Appeal from ern District of

W. N. Miller T. A. Brown Before GOFI

District Judges.

MCDOWELL in detail the fact bankruptcy to se the bankrupt to County Bank an discuss the possit the bank was not ing that it was a from the bankrup the contention tha that the bankrupt July 1, 1898, c. 3415). The burde and appellee here. (2d Ed.) p. 609. 1 tain. We are ther learned trial court pellant,

ere the main causes of the collision; also, that the steamer Galicia ontributed to the accident by her fault, and by the use of reasonble care and prudence she could have avoided the injury. There s much conflict in the evidence as to whether the transfer steamer was really in the river and as to the conduct of the Galicia in stopping and reversing after the danger signals were given; but, as we view the case, we are not called on to reconcile the evidence or further pass on the points involved.

We concur with the District Court in finding both vessels in fault, and the decree appealed from is affirmed. The costs of appeal and cross-appeal, including the transcript, to be divided equally between appellant and cross-appellant.


(Circuit Court of Appeals, Fourth Circuit. April 9, 1907.)

No. 675.


Where a payment made by it bankrupt was in discharge of a valid obligation, the burden was on the bankrupt's trustee seeking to recover the same to show that the creditor paid had reasonable cause to believe that the bankrupt intended thereby to give a preference, as required by Bankr. Act July 1, 1898, c. 541, $ 600, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]. Appeal from the District Court of the United States for the Northern District of West Virginia, at Clarksburg

W. N. Miller, for appellant.
T. A. Brown, for appellee.

Before GOFF, Circuit Judge, and BRAWLEY and McDOWELL,
District Judges.

MCDOWELL, District Judge. It seemis quite unnecessary to state in detail the facts of this case. It was a suit brought by a trustee in bankruptcy to set aside certain fraudulent conveyances of property by the bankrupt to certain defendants, and to recover from the Calhoun County Bank an alleged preferential payment. We do not pause to discuss the possibility that the transaction between the bankrupt and the bank was not a payment, but a mere exchange of notes. Assuming that it was a payment, yet it was in discharge of a valid obligation from the bankrupt to the bank, and we fail to find evidence supporting the contention that the bank knew, or had reasonable cause to believe, that the bankrupt intended thereby to give a preference. Bankr. Act July 1, 1898, c. 541, $ 600, 30 Stat. 562 [U. S. Camp. St. 1901, p. 3145). The burden of proof was on the trustee-complainant below and appellee here. See authorities cited in Loveland on Bankruptcy (2d Ed.) p. 609. This burden the trustee, in our opinion, failed to sus: tain. We are therefore constrained to hold that the decree of the learned trial court is erroneous in so far as it decrees against the appellant,

"(3) In an air-heating and

trolling the ducts, a pneuma valves or dampers and opera a system of heating and at different temperatures, tus wherein double dampe cold air, are held in mixii

An order will be entered reversing the decree below, with costs, remanding the cause, and directing that the trial court enter a decree dismissing complainant's bill as to appellant, and adjudging to said appellant its costs in the trial court.


air discharged in and discloses inve prior art, in that from one fixed poi far a pioneer in the use of any of t the same combinat

In Equity. On fir

Offield, Towle & L complainant.

Jones, Addington & Robert Lewis Ames, a

(Circuit Court of Appeals, Fifth Circuit. April 15, 1907.)

No. 1,633.


A contract by a bank to advance the money to pay a composition made by a bankrupt, in part consideration for which it was to receive payment of its own debt in full, is illegal, and will not support an action by the bank to recover from another creditor the amount he received under the composition, and which by such contract, to which he was a party, he agreed to return to the bank.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 6, Bankruptcy, $ 587.) In Error to the Circuit Court of the United States for the Eastern District of Texas.

F. D. Minor, for plaintiff in error.
A. T. Watts and Lewis F. Chester, for defendant in error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

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PER CURIAM. On the case made, the contract by the Citizens' National Bank of Beaumont, under which it advanced the money to pay the composition to creditors in the bankruptcy of E. N. Brown, was illegal, because a part of the consideration thereof was that the bank's debt against the bankrupt should be paid in full, notwithstanding the composition.

Solinsky was a party to the illegal contract, and therein agreed as a part of the inducement that he would return to the bank the amounts received by him under the composition as one of the creditors of the bankrupt, Brown. The present suit, being one to recover from Solinsky the amounts received by him under the composition, is clearly a suit to recover moneys knowingly advanced under an illegal contract.

The judgment of the Circuit Court is therefore affirmed.

relief is now asked as to claims in suit read as f

“(1) In an air-heating a of air at different tempera dow of the air-currents and for controlling said meaus means according to change

"(2) In an air-heating an air at different temperatur means for beating the curr for controlling the flow of statically-governed motor f duct-controlling means bein the extent to which the othe ally through each of said d the apartments to be contri

air at different temperature

a thermostat for maintaining of the apartment to be contr

Defendant's device, wh which art may be stated.


POWERS REGULATOR CO. V. NATIONAL REGULATOR CO. (Circuit Court, N. D. Illinois, E. D. March 15, 1907.)

statically-controlled motor."

No. 26,777.


The Powers patent, No. 558,610, for improvements in heating and ventilating, which consist of a beating and ventilating apparatus wherein double dampers controlling separate ducts for hot and cold air are held in mixing position by a gradually-acting thermostatically-controlled motor, the purpose being to automatically regulate the temperature of the

uniform temperature in th this delivery of the mixed relates to means for hea schoolhouses, and other ed a single plant. Both devic

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